Judge Accuses HSE Of Creating Another X Case Scenario

Ann O'Loughlin The Irish Independent Thursday May 10th.

THE judge at the centre of the latest abortion case was yesterday sharply critical of the HSE over the way it handled Miss D's situation.

The HSE seemed to have tried to "shoehorn" Miss D into an X Case-type situation although it had no evidence that she was ever suicidal, Mr Justice Liam McKechnie said.

While it would "perhaps be unfair" to criticise the HSE for seeking to create an X Case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.

The judge said the position of the HSE had changed significantly, "some would say dramatically", during the case.

It had initially told Miss D she could not travel for an abortion without its consent and that it she tried, she could be restrained, by force if necessary.

However, that claim was not pursued during the court hearing. The actions of a HSE social worker in telling gardai that Miss D must be prevented from travelling were without foundation in law, the judge said.

The HSE had later made the argument that a District Court order was required before Miss D could travel, he said. If it believed so, it should have made a District Court application early on.
Justice McKechnie said the HSE was effectively "riding two horses with a firm grip on both" and, either way, it had control over the destiny of Miss D.

It seemed that the HSE had tried to shoehorn Miss D into an X Case situation and it was to Miss D's great credit that she did not perjure herself in that regard and say she was suicidal.

The actions of the HSE indicated it had crucially failed to have regard to her best interests and also failed to have regard to her own wishes and the wishes of her mother. There was no conflict between herself and her mother about her decision on the termination, he noted.

The HSE was to be commended for applying to the District Court last Saturday, albeit late in the day, Mr McKechnie said.

However, the judge said he must comment on the "unacceptable failure" to disclose until later in the court hearing that the HSE had contacted the Passport Office after Miss D told a social worker she intended applying for a passport.